17 N.Y.S. 281 | N.Y. Sup. Ct. | 1892
This action is brought to obtain a judicial construction of the twenty-fifth provision of the last will and testament of Allen Ayrault, so as to enable the trustee to make a final disposition of the trust-estate now in his hands for distribution. Allen Ayrault, the testator, died February 4, 1861, leaving a last will and testament, the twenty-fifth clause or item of which created certain trusts in the residuary portion of his estate, and directed a division of the funds after the termination of the trusts. There has been paid out since the probate of the will, which followed soon after the death of the testator, the sum of $153,990 under this, the twenty-fifth, item. There now remains in the hands of the trustee the further sum of $38,000 for final distribution. On proceedings upon the trustee’s petition before the surrogate for a final settlement of his accounts, and for the discharge of the trustee under the will, a contest was made, relating not only to where the present fund should go, but also touching the correctness and legality of past payments, and thereupon it was thought advisable to come into this court for a disposition of the question involved. That portion of the twenty-fifth clause or item of the will material to this inquiry is as follows: “I give, devise, and bequeath the rest, residue, and remainder of my estate, both personal and real, not hereinbefore disposed of, and such portions of the same as shall remain after the trusts herein provided for are fully discharged and fulfilled, and the legacies herein given are paid in full, to my said trustee, to be by himself disposed of as follows: I direct him to sell and convey all such estate, real or personal, and convert the same into money or available means for such purpose, and dispose thereof as follows: I direct him- as fast as practicable to divide two-thirds of said residuary estate between all the children of my brother John Ayrault, and my sister Mary Smith, widow of Sparrow Smith, and of my deceased brothers, Nicholas Ayrault, Boswell Ayrault, and Lyman Ayrault, and of my deceased sister, Emily Griffith, who may be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate, or any part thereof, is distributed; said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion to which their parent would, if living at such distribution, be entitled^under this provision.” The practical construction which for 30 years has been placed upon this provision of the will by the trustee, and approved by the surrogate’s court in 17 separate distributions of the funds arising from such trust, has been that the remainder over did not vest in the testator’s nephews and nieces or their descendants until the necessary moneys had been obtained from time to time for actual distribution among them; and that, in the event of the death of any of the residuary legatees before the time of the distribution, the legatee so dying had no vested interest in the residuary estate, but that the share which such legatee would have been entitled to if living vested upon such distribution in his descendants, if any, or, if none, then in the other residuary legatees, and, consequent
As bearing upon the construction of this portion of the will, it may be needful to look into other portions thereof. Upon reference thereto it is found that'the amount of the property which might ultimately come into the residuum was not ascertained nor ascertainable, either by the testator or by the executors and trustees, at the time of qualifying. In the fourth item the testator gave to his wife and to Hellie B. Bond jointly, and to the survivors of them, certain specified personal property, with the proviso that such property should revert to and become a part of the residuary estate in case Miss Bond should survive Mrs. Ayraúlt, and die without issue. The fifth clause contained like provisions concerning devises to the same parties of certain real estate. The sixth clause contained the devise of the use of two farms to these persons jointly during their lives, and to the survivor during her separate life; the net proceeds of which were to be paid to them by the trustee, who was authorized to sell the same, in his discretion, after 10 years from the testator’s death, with the consent of the wife of the testator and of Miss Bond, and, in case of such sale, invest one-half of such proceeds; the remaining one-half to become part of the residuary estate. These farms, or the proceeds of the sale of them, were, on the death of the survivor, to become a part of-the residuary estate. By the seventh section the trustee was directed" to set apart out of the personal property the sum of $50,000, and pay the interest thereof to the widow and Miss Bond jointly during their lives, and to the survivor during her life; and the other one-half thereof, upon the death of either of them, to become part of the residuary estate; and on the death of. the survivor the whole thereof was to fall into the residuum. The fifteenth section of the will contains a direction to the trustee to invest the sum of $5,000, the interest thereof to be paid annually to two beneficiaries named, and to the survivor of them, and, after the death of such survivor, such sum to become part of the residuary estate. It is stated that one of these beneficiaries is still living, but it is understood by all parties that a sum in gross has been agreed upon to take the place of the annuity. The sixteenth section requires the trustee to invest the sum of $15,000, and to pay the interest on $12,000 thereof to a beneficiary named during his life, and on his death to pay the $12,000 to his children, the interest on the remaining $3,000 to be paid annually to the other beneficiary named, during her life, and, on her death, this sum of $3,000 was to become a part of the residuary estate. These provisions of the will, though not essential, it is believed, to a proper understanding and construction of the twenty-fifth section, reflect, nevertheless, some light upon the subject of the general testamentary scheme which was in the testator’s mind.
We have not overlooked the cases upon which the learned counsel for the defendants mainly rely, nor the argument which has been so elaborately presented to the court in the briefs submitted. The case of McKinstry v. Sanders, 2 Thomp. & C. 181, affirmed 58 N. Y. 662, on the opinion of the court at general term, is stated by counsel to be so nearly like the ease before us as to be a controlling authority. But in that case it will be found that, while certain annuities were created out of the fund produced in part by the conversion of real estate, there was a provision that, upon executing a bond for their payment by a religious body to whom the fund was bequeathed, the legatee —the religious body—should immediately take the whole of the fund. This fact disclosed an intention on the part of the testator that the religious corporation should have immediate title, followed by a full possession of the fund, upon giving the bond to pay the annuities. But this is the very exception to the rule which we deem applicable to this appeal, and is well recognized in the authorities which we have cited. In the case before us, however, the distribution is actually and necessarily postponed until the annuities cease. By no possibility could the children of the testator’s brothers and sisters receive any part of the property until after the cessation of the life-estates. Judge Miller, in McKinstry v. Sanders, supra, says: “ The payment of the legacies was postponed to enable the executor to dispose of the real estate, and Convert the whole of the estate into money; thus making the bequest independent of the time named, and vesting the legacies at the time of the testator’s death. ” So, also, in Goebel v. Wolf, 113 N. Y. 405, 21 N. E.
In respect to the appeal by the plaintiff and by certain of the defendants from that part of the interlocutory judgment which adjudges that the defendants are not estopped by the former accountings from raising the question here discussed, it is, as it seems to us, partly well taken and partly not. We are unable to find any proceedings upon the past accountings which would estop one class of defendants, as against the other, to set up the claim now made. To that extent we think the conclusion of the referee was correct. But, as between such defendants and the plaintiff, the same rule would not apply beyond the question of the distribution of the funds now remaining undisposed of. So far as the trustee has actually paid out moneys, he has acted with full knowledge of, and without objection coming from, these defendants. Still, if he has proceeded upon an erroneous basis, and yet has funds sufficient in his hands to equalize the payments among the distributees, we know of no reason why he should not be required so to distribute them, provided the court is wrong in its conclusion upon the main question. But he cannot, under these circumstances, be held personally liable for any loss. This question, however, is probably not of any practical importance if the construction of the will, as above given, is correct. It follows, therefore, that the interlocutory judgment should be modified in respect to the provision therein touching the estoppel, and, as so modified, affirmed. Interlocutory judgment modified as stated in the opinion, and, as so modified, affirmed, with costs of this appeal to the several classes of parties who have filed briefs, payable out of the fund. All concur.